U.S.
Supreme Court five days in the territorial waters of Spain, and the schooner extended
The Paquete Habana, 175 U.S. 677 (1900)
The Paquete Habana
Nos. 895-896
Argued November 7-8, 1899
Decided January 8, 1900
175 U.S. 677 (1900)
APPEALS FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF FLORIDA
Syllabus
Under the Act of Congress of March 3, 1891, c. 517, this Court has
jurisdiction of appeals from all final sentences and decrees in prize
causes, without regard to the amount in dispute and without any
certificate of the district judge as to the importance of the particular
case.
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for
their determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must
be had to the customs and usages of civilized nations, and, as evidence
of these, to the works of jurists and commentators, not for the
speculations of their authors concerning what the law ought to be, but
for trustworthy evidence of what the law really is.
At the present day, by the general consent of the civilized nations of
the world and independently of any express treaty or other public act,
it is an established rule of international law that coast fishing vessels,
with their implements and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of catching and bringing in
fresh fish, are exempt from capture as prize of war. And this rule is one
which prize courts, administering the law of nations, are bound to take
judicial notice of, and to give effect to, in the absence of any treaty or
other public act of their own government in relation to the matter.
At the breaking out of the recent war with Spain, two fishing smacks --
the one a sloop, 43 feet long on the keel and of 25 tons burden, and
with a crew of three men, and the other a schooner, 51 feet long on
the keel and of 35 tons burden, and with a crew of six men -- were
regularly engaged in fishing on the coast of Cuba, sailing under the
Spanish flag, and each owned by a Spanish subject, residing in Havana;
her crew, who also resided there, had no interest in the vessel, but
were entitled to shares, amounting in all to two thirds, of her catch,
the other third belonging to her owner, and her cargo consisted of
fresh fish, caught by her crew from the sea, put on board as they were
caught, and kept and sold alive. Each vessel left Havana on a coast
fishing voyage, and sailed along the coast of Cuba about two hundred
miles to the west end of the island; the sloop there fished for twenty-
April 26, 1898, near Havana, she was stopped by the United States
her fishing trip a hundred
Page 175 U. S. 678
miles farther across the Yucatan Channel, and fished for eight days on
the coast of Yucatan. On her return, with her cargo of live fish, along
the coast of Cuba, and when near Havana, each was captured by one
of the United States blockading squadron. Neither fishing vessel had
any arms or ammunition on board, had any knowledge of the
blockade, or even of the war, until she was stopped by a blockading
vessel, made any attempt to run the blockade, or any resistance at the
time of her capture, nor was there any evidence that she, or her crew,
was likely to aid the enemy. Held that both captures were unlawful,
and without probable cause.
The cases are stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
These are two appeals from decrees of the District Court of the United
States for the Southern District of Florida condemning two fishing
vessels and their cargoes as prize of war.
Each vessel was a fishing smack, running in and out of Havana, and
regularly engaged in fishing on the coast of Cuba; sailed under the
Spanish flag; was owned by a Spanish subject of Cuban birth, living in
the City of Havana; was commanded by a subject of Spain, also
residing in Havana, and her master and crew had no interest in the
vessel, but were entitled to shares, amounting in all to two-thirds, of
her catch, the other third belonging to her owner. Her cargo consisted
of fresh fish, caught by her crew from the sea, put on board as they
were caught, and kept and sold alive. Until stopped by the blockading
squadron, she had no knowledge of the existence of the war or of any
blockade. She had no arms or ammunition on board, and made no
attempt to run the blockade after she knew of its existence, nor any
resistance at the time of the capture.
The Paquete Habana was a sloop, 43 feet long on the keel,
Page 175 U. S. 679
and of 25 tons burden, and had a crew of three Cubans, including the
master, who had a fishing license from the Spanish government, and
no other commission or license. She left Havana March 25, 1898,
sailed along the coast of Cuba to Cape San Antonio at the western end
of the island, and there fished for twenty-five days, lying between the
reefs off the cape, within the territorial waters of Spain, and then
started back for Havana, with a cargo of about 40 quintals of live fish.
On April 25, 1898, about two miles off Mariel, and eleven miles from
Havana, she was captured by the United States gunboat Castine.
The Lola was a schooner, 51 feet long on the keel, and of 35 tons
burden, and had a crew of six Cubans, including the master, and no
commission or license. She left Havana April 11, 1898, and proceeded
to Campeachy Sound, off Yucatan, fished there eight days, and started
back for Havana with a cargo of about 10,000 pounds of live fish. On
steamship Cincinnati, and was warned not to go into Havana, but was
told that she would be allowed to land at Bahia Honda. She then
changed her course, and put for Bahia Honda, but on the next
morning, when near that port, was captured by the United States
steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West. A
libel for the condemnation of each vessel and her cargo as prize of war
was there filed on April 27, 1898; a claim was interposed by her master
on behalf of himself and the other members of the crew, and of her
owner; evidence was taken, showing the facts above stated, and on
May 30, 1898, a final decree of condemnation and sale was entered,
"the court not being satisfied that as a matter of law, without any
ordinance, treaty, or proclamation, fishing vessels of this class are
exempt from seizure."
Each vessel was thereupon sold by auction; the Paquete Habana for
the sum of $490 and the Lola for the sum of $800. There was no other
evidence in the record of the value of either vessel or of her cargo.
It has been suggested in behalf of the United States that
Page 175 U. S. 680
this Court has no jurisdiction to hear and determine these appeals
because the matter in dispute in either case does not exceed the sum
or value of $2,000, and the district judge has not certified that the
adjudication involves a question of general importance.
The suggestion is founded on § 695 of the Revised Statutes, which
provides that
"an appeal shall be allowed to the Supreme Court from all final
decrees of any district court in prize causes, where the matter in
dispute, exclusive of costs, exceeds the sum or value of two thousand
dollars, and shall be allowed, without reference to the value of the
matter in dispute, on the certificate of the district judge that the
adjudication involves a question of general importance."
The Judiciary Acts of the United States, for a century after the
organization of the government under the Constitution, did impose
pecuniary limits upon appellate jurisdiction.
In actions at law and suits in equity the pecuniary limit of the appellate
jurisdiction of this Court from the circuit courts of the United States
was for a long time fixed at $2000. Acts of September 24, 1789, c. 20, §
22; 1 Stat. 84; March 3, 1803, c. 40; 2 Stat. 244; Gordon v. Ogden, 3
Pet. 33; Rev.Stat. §§ 691, 692. In 1875, it was raised to $5,000. Act of
February 16, 1875, c. 77, § 3; 18 Stat. 316. And in 1889 this was
modified by providing that, where the judgment or decree did not
exceed the sum of $5,000, this Court should have appellate jurisdiction
upon the question of the jurisdiction of the circuit court, and upon that
question only. Act of February 25, 1889, c. 236, § 1; 25 Stat. 693;
Parker v. Ormsby, 141 U. S. 81.
As to cases of admiralty and maritime jurisdiction, including prize
1
causes, the Judiciary Act of 1789, in § 9, vested the original jurisdiction
in the district courts, without regard to the sum or value in
controversy, and in § 21 permitted an appeal from them to the circuit
courts where the matter in dispute exceeded the sum or value of
$300. 1 Stat. 77, 83, c. 20; The Betsey, 3 Dall. 6, 3 U. S. 16; The Amiable
Nancy, 3 Wheat. 546; Stratton v. Jarvis, 8 Pet. 4, 33 U. S. 11. By the Act
of March 3, 1803, c. 40, appeals to the circuit court were permitted
from all final decrees of a district court where
Page 175 U. S. 681
the matter in dispute exceeded the sum or value of $50, and from the
circuit courts to this Court in all cases "of admiralty and maritime
jurisdiction, and of prize or no prize" in which the matter in dispute
exceeded the sum or value of $2,000. 2 Stat. 244; Jenks v. Lewis, 3
Mason 503; Stratton v. Jarvis, above cited; The Admiral, 3 Wall. 603, 70
U. S. 612. The acts of March 3, 1863, c. 86, § 7, and June 30, 1864, c.
174, § 13, provided that appeals from the district courts in prize causes
should lie directly to this Court, where the amount in controversy
exceeded $2,000, or "on the certificate of the district judge that the
adjudication involves a question of difficulty and general importance."
12 Stat. 760; 13 Stat. 310. The provision of the act of 1803, omitting
the words "and of prize or no prize," was reenacted in § 692 of the
Revised Statutes, and the provision of the act of 1864, concerning
prize causes, was substantially reenacted in § 695 of the Revised
Statutes, already quoted.
But all this has been changed by the Act of March 3, 1891, c. 517,
establishing the circuit courts of appeals and creating a new and
complete scheme of appellate jurisdiction, depending upon the nature
of the different cases, rather than upon the pecuniary amount
involved. 26 Stat. 826.
By that act, as this Court has declared, the entire appellate jurisdiction
from the circuit and district courts of the United States was
distributed, "according to the scheme of the act," between this Court
and the circuit courts of appeals thereby established, "by designating
the classes of cases" of which each of these courts was to have final
jurisdiction. McLish v. Roff, 141 U. S. 661, 141 U. S. 666; American
Construction Co. v. Jacksonville Railway, 148 U. S. 372, 148 U. S. 382;
Carey v. Houston & Texas Railway, 150 U. S. 170, 150 U. S. 179.
The intention of Congress, by the act of 1891, to make the nature of
the case, and not the amount in dispute, the test of the appellate
jurisdiction of this Court from the district and circuit courts clearly
appears upon examination of the leading provisions of the act.
Section 4 provides that no appeal, whether by writ of error or
otherwise, shall hereafter be taken from a district court
Page 175 U. S. 682
to a circuit court, but that all appeals, by writ of error or otherwise,
from the district courts "shall only be subject to review" in this Court
or in the circuit court of appeal "as is hereinafter provided," and "the
review by appeal, by writ of error, or otherwise" from the circuit
courts, "shall be had only" in this Court or in the circuit court of
appeals, "according to the provisions of this act regulating the same."
Section 5 provides that "appeals or writs of error may be taken from
the district courts, or from the existing circuit courts, direct to the
Supreme Court, in the following cases:"
First.
"In any case in which the jurisdiction of the court is in issue; in such
cases, the question of jurisdiction alone shall be certified to the
Supreme Court from the court below for decision."
This clause includes "any case," without regard to amount, in which
the jurisdiction of the court below is in issue, and differs in this respect
from the act of 1889, above cited.
Second. "From the final sentences and decrees in prize causes." This
clause includes the whole class of "the final sentences and decrees in
prize causes," and omits all provisions of former acts regarding amount
in controversy, or certificate of a district judge.
Third. "In cases of conviction of a capital or otherwise infamous
crime." This clause looks to the nature of the crime, and not to the
extent of the punishment actually imposed. A crime which might have
been punished by imprisonment in a penitentiary is an infamous
crime, even if the sentence actually pronounced is of a small fine only.
Ex Parte Wilson, 114 U. S. 417, 114 U. S. 426. Consequently, such a
sentence for such a crime was subject to the appellate jurisdiction of
this Court, under this clause, until this jurisdiction, so far as regards
infamous crimes, was transferred to the circuit court of appeals by the
Act of January 20, 1897, c. 68. 29 Stat. 492.
Fourth. "In any case, that involves the construction or application of
the Constitution of the United States."
Fifth.
"In any case in which the constitutionality of any law of the United
States, or the validity or construction of any treaty made under its
authority, is drawn in question. "
Page 175 U. S. 683
Sixth. "In any case in which the Constitution or law of a state is claimed
to be in contravention of the Constitution of the United States."
Each of these last three clauses, again, includes "any case" of the class
mentioned. They all relate to what are commonly called federal
questions, and cannot reasonably be construed to have intended that
the appellate jurisdiction of this Court over such questions should be
restricted by any pecuniary limit -- especially in their connection with
the succeeding sentence of the same section:
"Nothing in this act shall affect the jurisdiction of the Supreme Court in
cases appealed from the highest court of a state, nor the construction
of the statute providing for review of such cases."
Writs of error from this Court to review the judgments of the highest
court of a state upon such questions have never been subject to any
pecuniary limit. Act of September 24, 1789, c. 20, § 25; 1 Stat. 85; Buel
v. Van Ness, 8 Wheat. 312; Act of February 5, 1867, c. 28, § 2; 14 Stat.
386; Rev.Stat. § 709.
By section 6 of the act of 1891, this Court is relieved of much of the
appellate jurisdiction that it had before; the appellate jurisdiction from
the district and circuit courts "in all cases other than those provided
for in the preceding section of this act, unless otherwise provided by
law," is vested in the circuit court of appeals, and its decisions in
admiralty cases, as well as in cases arising under the criminal laws, and
in certain other classes of cases, are made final, except that that court
may certify to this Court questions of law, and that this Court may
order up the whole case by writ of certiorari. It is settled that the
words "unless otherwise provided by law," in this section, refer only to
provisions of the same act, or of contemporaneous or subsequent
acts, and do not include provisions of earlier statutes. Lau Ow Bew v.
United States, 144 U. S. 47, 144 U. S. 57; Hubbard v. Soby, 146 U. S. 56;
American Construction Co. v. Jacksonville Railway, 148 U. S. 372, 148
U. S. 383.
The act of 1891 nowhere imposes a pecuniary limit upon the appellate
jurisdiction, either of this Court or of the circuit court of appeals, from
a district or circuit court of the United States. The only pecuniary limit
imposed is one of
Page 175 U. S. 684
$1,000 upon the appeal to this Court of a case which has been once
decided on appeal in the circuit court of appeals, and in which the
judgment of that court is not made final by section 6 of the act.
Section 14 of the act of 1891, after specifically repealing section 691 of
the Revised Statutes and section 3 of the act of February 16, 1875,
further provides that
"all acts and parts of acts relating to appeals or writs of error,
inconsistent with the provisions for review by appeals or writs of error
in the preceding sections 5 and 6 of this act, are hereby repealed."
26 Stat. 829, 830. The object of the specific repeal, as this Court has
declared, was to get rid of the pecuniary limit in the acts referred to.
McLish v. Roff, 141 U. S. 661, 141 U. S. 667. And, although neither
section 692 nor section 695 of the Revised Statutes is repealed by
name, yet, taking into consideration the general repealing clause,
together with the affirmative provisions of the act, the case comes
within the reason of the decision in an analogous case, in which this
Court said:
"The provisions relating to the subject matter under consideration are,
however, so comprehensive, as well as so variant from those of former
acts, that we think the intention to substitute the one for the other is
necessarily to be inferred, and must prevail."
Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468.
The decision in this Court in the recent case of United States v. Rider,
2
163 U. S. 132, affords an important, if not controlling, precedent. From
the beginning of this century until the passage of the act of 1891, both
in civil and in criminal cases, questions of law upon which two judges
of the circuit court were divided in opinion might be certified by them
to this Court for decision. Act of April 29, 1802, c. 31, § 6; 2 Stat. 159;
June 1, 1872, c. 255, § 1; 17 Stat.196; Rev.Stat. §§ 650-652, 693, 697;
Insurance Co. v. Dunham, 11 Wall. 1, 78 U. S. 21; United States v.
Sanges, 144 U. S. 310, 144 U. S. 320. But in United States v. Rider, it
was adjudged by this Court that the act of 1891 had superseded and
repealed the earlier acts authorizing questions of law to be certified
from the circuit court to this Court, and the grounds of that
adjudication sufficiently appear by
Page 175 U. S. 685
the statement of the effect of the act of 1891 in two passages of that
opinion:
"Appellate jurisdiction was given in all criminal cases by writ of error
either from this Court or from the circuit courts of appeals, and in all
civil cases by appeal or error, without regard to the amount in
controversy, except as to appeals or writs of error to or from the
circuit courts of appeals in cases not made final as specified in § 6. . . .
It is true that repeals by implication are not favored, but we cannot
escape the conclusion that, tested by its scope, its obvious purpose,
and its terms, the Act of March 3, 1891, covers the whole subject
matter under consideration, and furnishes the exclusive rule in respect
of appellate jurisdiction on appeal, writ of error, or certificate."
163 U. S. 163 U.S. 138, 163 U. S. 140.
That judgment was thus rested upon two successive propositions: first,
that the act of 1891 gives appellate jurisdiction, either to this Court or
to the circuit court of appeals, in all criminal cases, and in all civil cases
"without regard to the amount in controversy;" second, that the act,
by its terms, its scope, and its obvious purpose, "furnishes the
exclusive rule in respect of appellate jurisdiction on appeal, writ of
error, or certificate."
As was long ago said by Chief Justice Marshall,
"the spirit as well as the letter of a statute must be respected, and
where the whole context of the law demonstrates a particular intent in
the legislature to effect a certain object, some degree of implication
may be called in to aid that intent."
Durousseau v. United States, 6 Cranch 307, 10 U. S. 314. And it is a well
settled rule in the construction of statutes, often affirmed and applied
by this Court, that,
"even where two acts are not in express terms repugnant, yet if the
latter act covers the whole subject of the first, and embraces new
provisions, plainly showing that it was intended as a substitute for the
first act, it will operate as a repeal of that act."
United States v. Tynen, 11 Wall. 88, 78 U. S. 92; King v. Cornell, 106 U.
S. 395, 106 U. S. 396; Tracy v. Tuffly, 134 U. S. 206, 134 U. S. 223; Fisk
v. Henarie, 142 U. S. 459, 142 U. S. 468; District of Columbia v. Hutton,
143 U. S. 18, 143 U. S. 27; United States v. Healey, 160 U. S. 136, 160 U.
S. 147.
We are of opinion that the act of 1891, upon its face, read
Page 175 U. S. 686
in the light of settled rules of statutory construction and of the
decisions of this Court, clearly manifests the intention of Congress to
cover the whole subject of the appellate jurisdiction from the district
and circuit courts of the United States, so far as regards in what cases,
as well as to what courts, appeals may be taken, and to supersede and
repeal, to this extent, all the provisions of earlier acts of Congress,
including those that imposed pecuniary limits upon such jurisdiction,
and, as part of the new scheme, to confer upon this Court jurisdiction
of appeals from all final sentences and decrees in prize causes, without
regard to the amount in dispute, and without any certificate of the
district judge as to the importance of the particular case.
We are then brought to the consideration of the question whether,
upon the facts appearing in these records, the fishing smacks were
subject to capture by the armed vessels of the United States during
the recent war with Spain.
By an ancient usage among civilized nations, beginning centuries ago
and gradually ripening into a rule of international law, coast fishing
vessels pursuing their vocation of catching and bringing in fresh fish
have been recognized as exempt, with their cargoes and crews, from
capture as prize of war.
This doctrine, however, has been earnestly contested at the bar, and
no complete collection of the instances illustrating it is to be found, so
far as we are aware, in a single published work, although many are
referred to and discussed by the writers on international law, notable
in 2 Ortolan, Regles Internationales et Diplomatie de la Mer (4th ed.)
lib. 3, c. 2, pp. 51-56; in 4 Calvo, Droit International (5th ed.) §§ 2367-
2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, §§
191-196, and in Hall, International Law (4th ed.) § 148. It is therefore
worth the while to trace the history of the rule from the earliest
accessible sources through the increasing recognition of it, with
occasional setbacks, to what we may now justly consider as its final
establishment in our own country and generally throughout the
civilized world.
The earliest acts of any government on the subject mentioned
Page 175 U. S. 687
in the books either emanated from, or were approved by, a King of
England.
In 1403 and 1406, Henry IV issued orders to his admirals and other
officers, entitled "Concerning Safety for Fishermen -- De Securitate pro
Piscatoribus." By an order of October 26, 1403, reciting that it was
made pursuant to a treaty between himself and the King of France,
and for the greater safety of the fishermen of either country, and so
that they could be, and carry on their industry, the more safely on the
sea, and deal with each other in peace, and that the French King had
consented that English fishermen should be treated likewise, it was
ordained that French fishermen might, during the then pending season
for the herring fishery, safely fish for herrings and all other fish from
the harbor of Gravelines and the Island of Thanet to the mouth of the
Seine and the harbor of Hautoune. And by an order of October 5,
1406, he took into his safe conduct and under his special protection,
guardianship, and defense all and singular the fishermen of France,
Flanders, and Brittany, with their fishing vessels and boats,
everywhere on the sea, through and within his dominions,
jurisdictions, and territories, in regard to their fishery, while sailing,
coming, and going, and at their pleasure, freely and lawfully fishing,
delaying, or proceeding, and returning homeward with their catch of
fish, without any molestation or hindrance whatever, and also their
fish, nets, and other property and goods soever, and it was therefore
ordered that such fishermen should not be interfered with, provided
they should comport themselves well and properly, and should not, by
color of these presents, do or attempt, or presume to do or attempt,
anything that could prejudice the King, or his Kingdom of England, or
his subjects. 8 Rymer's Foedera 336, 451.
The treaty made October 2, 1521, between the Emperor Charles V and
Francis I of France, through their ambassadors, recited that a great and
fierce war had arisen between them, because of which there had
been, both by land and by sea, frequent depredations and incursions
on either side, to the grave detriment and intolerable injury of the
innocent
Page 175 U. S. 688
subjects of each, and that a suitable time for the herring fishery was at
hand, and, by reason of the sea being beset by the enemy, the
fishermen did not dare to go out, whereby the subject of their
industry, bestowed by heaven to allay the hunger of the poor, would
wholly fail for the year unless it were otherwise provided -- quo fit, ut
piscaturae commoditas, ad pauperum levandam famen a coelesti
numine concessa, cessare hoc anno omnino debeat, nisi aliter
provideatur. And it was therefore agreed that the subjects of each
sovereign, fishing in the sea or exercising the calling of fishermen,
could and might, until the end of the next January, without incurring
any attack, depredation, molestation, trouble, or hindrance soever,
safely and freely, everywhere in the sea, take herrings and every other
kind of fish, the existing war by land and sea notwithstanding; and,
further, that, during the time aforesaid, no subject of either sovereign
should commit, or attempt or presume to commit, any depredation,
force, violence, molestation, or vexation to or upon such fishermen or
their vessels, supplies, equipments, nets, and fish, or other goods
soever truly appertaining to fishing. The treaty was made at Calais,
then an English possession. It recites that the ambassadors of the two
3
sovereigns met there at the earnest request of Henry VIII and with his
countenance and in the presence of Cardinal Wolsey, his chancellor
and representative. And towards the end of the treaty, it is agreed that
the said King and his said representative, "by whose means the treaty
stands concluded, shall be conservators of the agreements therein, as
if thereto by both parties elected and chosen." 4 Dumont, Corps
Diplomatique, pt. 1, pp. 352, 353.
The herring fishery was permitted, in time of war, by French and Dutch
edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib. 1, c. 3; 1
Emerigon des Assurances, c. 4, section 9; c. 12, section 19, section 8.
France, from remote times, set the example of alleviating the evils of
war in favor of all coast fishermen. In the compilation entitled "Us et
Coutumes de la Mer," published by Cleirac in 1661, and in the third
part thereof, containing "Maritime or Admiralty Jurisdiction -- la
Jurisdiction de la
Page 175 U. S. 689
Marine ou d'Admiraute -- as well in time of peace as in time of war,"
article 80 is as follows:
"The admiral may in time of war accord fishing truces -- tresves
pescheresses -- to the enemy and to his subjects, provided that the
enemy will likewise accord them to Frenchmen."
Cleirac 544. Under this article, reference is made to articles 49 and 79,
respectively, of the French ordinances concerning the admiralty in
1543 and 1584, of which it is but a reproduction. 4 Pardessus,
Collection de Lois Maritimes 319; 2 Ortolan, 51. And Cleirac adds, in a
note, this quotation from Froissart's Chronicles:
"Fishermen on the sea, whatever war there were in France and
England, never did harm to one another; so they are friends, and help
one another at need -- Pescheurs sur mer, quelque guerre qui soit en
France et Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont
amis, et s'aydent l'un a l'autre au besoin."
The same custom would seem to have prevailed in France until
towards the end of the seventeenth century. For example, in 1675,
Louis XIV and the States General of Holland, by mutual agreement,
granted to Dutch and French fishermen the liberty, undisturbed by
their vessels of war, of fishing along the coasts of France, Holland, and
England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol. 2, p.
278. But by the ordinances of 1681 and 1692, the practice was
discontinued, because, Valin says, of the faithless conduct of the
enemies of France, who, abusing the good faith with which she had
always observed the treaties, habitually carried off her fishermen,
while their own fished in safety. 2 Valin sur l'Ordonnance de la Marine
(1776) 689, 690; 2 Ortolan 52; De Boeck, § 192.
The doctrine which exempts coast fishermen, with their vessels and
cargoes, from capture as prize of war, has been familiar to the United
States from the time of the War of Independence.
On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to
his admiral, informing him that the wish he had always had of
alleviating, as far as he could, the hardships of war, had directed his
attention to that class of his subjects
Page 175 U. S. 690
which devoted itself to the trade of fishing, and had no other means of
livelihood; that he had thought that the example which he should give
to his enemies, and which could have no other source than the
sentiments of humanity which inspired him, would determine them to
allow to fishermen the same facilities which he should consent to
grant, and that he had therefore given orders to the commanders of all
his ships not to disturb English fishermen, nor to arrest their vessels
laden with fresh fish, even if not caught by those vessels; provided
they had no offensive arms, and were not proved to have made any
signals creating a suspicion of intelligence with the enemy, and the
admiral was directed to communicate the King's intentions to all
officers under his control. By a royal order in council of November 6,
1780, the former orders were confirmed, and the capture and ransom,
by a French cruiser, of The John and Sarah, an English vessel, coming
from Holland, laden with fresh fish, were pronounced to be illegal. 2
Code des Prises (ed. 1784) 721, 901, 903.
Among the standing orders made by Sir James Marriott, Judge of the
English High Court of Admiralty, was one of April 11, 1780, by which it
was
"ordered that all causes of prize of fishing boats or vessels taken from
the enemy may be consolidated in one monition, and one sentence or
interlocutory, if under fifty tons burthen, and not more than six in
number."
Marriott's Formulary 4. But by the statements of his successor, and of
both French and English writers, it appears that England, as well as
France, during the American Revolutionary War, abstained from
interfering with the coast fisheries. The Young Jacob and Johanna, 1 C.
Rob. 20; 2 Ortolan 53; Hall, § 148.
In the treaty of 1785 between the United States and Prussia, article 23
(which was proposed by the American Commissioners, John Adams,
Benjamin Franklin, and Thomas Jefferson, and is said to have been
drawn up by Franklin), provided that if war should arise between the
contracting parties,
"all women and children, scholars of every faculty, cultivators of the
earth, artisans, manufacturers, and fishermen,
Page 175 U. S. 691
unarmed and inhabiting unfortified towns, villages, or places, and in
general all others whose occupations are for the common subsistence
and benefit of mankind, shall be allowed to continue their respective
employments, and shall not be molested in their persons, nor shall
their houses or goods be burnt or otherwise destroyed, nor their fields
wasted by the armed force of the enemy, into whose power, by the
events of war, they may happen to fall; but if anything is necessary to
be taken from them for the use of such armed force, the same shall be
paid for at a reasonable price."
8 Stat. 96; 1 Kent Com. 91, note; Wheaton, History of the Law of
Nations, 306, 308. Here was the clearest exemption from hostile
molestation or seizure of the persons, occupations, houses, and goods
of unarmed fishermen inhabiting unfortified places. The article was
repeated in the later treaties between the United States and Prussia of
1799 and 1828. 8 Stat. 174, 384. And Dana, in a note to his edition of
Wheaton's International Laws, says:
"In many treaties and decrees, fishermen catching fish as an article of
food are added to the class of persons whose occupation is not to be
disturbed in war."
Wheaton, International Law (8th ed.) § 345, note 168.
Since the United States became a nation, the only serious
interruptions, so far as we are informed, of the general recognition of
the exemption of coast fishing vessels from hostile capture, arose out
of the mutual suspicions and recriminations of England and France
during the wars of the French Revolution.
In the first years of those wars, England having authorized the capture
of French fishermen, a decree of the French National Convention of
October 2, 1793, directed the executive power "to protest against this
conduct, theretofore without example; to reclaim the fishing boats
seized; and, in case of refusal, to resort to reprisals." But in July, 1796,
the Committee of Public Safety ordered the release of English
fishermen seized under the former decree, "not considering them as
prisoners of war." La Nostra Segnora de la Piedad (1801) cited below;
2 De Cussy, Droit Maritime, 164, 165; 1 Masse, Droit Commercial (2d
ed.) 266, 267.
Page 175 U. S. 692
On January 24, 1798, the English government by express order
instructed the commanders of its ships to seize French and Dutch
fishermen with their boats. 6 Martens, Recueil des Traites (2d ed.) 505;
6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53. After the
promulgation of that order, Lord Stowell (then Sir William Scott) in the
High Court of Admiralty of England condemned small Dutch fishing
vessels as prize of war. In one case, the capture was in April, 1798, and
the decree was made November 13, 1798. The Young Jacob and
Johanna, 1 C. Rob. 20. In another case, the decree was made August
23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note.
For the year 1800, the orders of the English and French governments
and the correspondence between them may be found in books already
referred to. 6 Martens 503-512; 6 Schoell, 118-120; 2 Ortolan 53, 54.
The doings for that year may be summed up as follows: on March 27,
1800, the French government, unwilling to resort to reprisals,
reenacted the orders given by Louis XVI in 1780, above mentioned,
prohibiting any seizure by the French ships of English fishermen, unless
4
armed or proved to have made signals to the enemy. On May 30,
1800, the English government, having received notice of that action of
the French government, revoked its order of January 24, 1798. But
soon afterward, the English government complained that French
fishing boats had been made into fireboats at Flushing, as well as that
the French government had impressed and had sent to Brest, to serve
in its flotilla, French fishermen and their boats, even those whom the
English had released on condition of their not serving, and on January
21, 1801, summarily revoked its last order, and again put in force its
order of January 24, 1798. On February 16, 1801, Napoleon Bonaparte,
then First Consul, directed the French commissioner at London to
return at once to France, first declaring to the English government that
its conduct,
"contrary to all the usages of civilized nations, and to the common law
which governs them, even in time of war, gave to the existing war a
character of rage and bitterness which destroyed even the relations
usual in a loyal war, "
Page 175 U. S. 693
and "tended only to exasperate the two nations, and to put off the
term of peace," and that the French government, having always made
it
"a maxim to alleviate as much as possible the evils of war, could not
think, on its part, of rendering wretched fishermen victims of a
prolongation of hostilities, and would abstain from all reprisals."
On March 16, 1801, the Addington Ministry, having come into power
in England, revoked the orders of its predecessors against the French
fishermen, maintaining, however, that "the freedom of fishing was
nowise founded upon an agreement, but upon a simple concession,"
that "this concession would be always subordinate to the convenience
of the moment," and that "it was never extended to the great fishery,
or to commerce in oysters or in fish." And the freedom of the coast
fisheries was again allowed on both sides. 6 Martens 514; 6 Schoell
121; 2 Ortolan, 54; Manning, Law of Nations (Amos' ed.) 206.
Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob. 20,
above cited, was much relied on by the counsel for the United States,
and deserves careful consideration.
The vessel there condemned is described in the report as "a small
Dutch fishing vessel taken April, 1798, on her return from the Dogger
bank to Holland," and Lord Stowell, in delivering judgment, said:
"In former wars, it has not been usual to make captures of these small
fishing vessels; but this rule was a rule of comity only, and not of legal
decision; it has prevailed from views of mutual accommodation
between neighboring countries, and from tenderness to a poor and
industrious order of people. In the present war, there has, I presume,
been sufficient reason for changing this mode of treatment, and as
they are brought before me for my judgment, they must be referred to
the general principles of this Court; they fall under the character and
description of the last class of cases -- that is, of ships constantly and
exclusively employed in the enemy's trade."
And he added: "It is a further satisfaction to me in giving this judgment
to observe that the facts also bear strong marks of a false and
fraudulent transaction."
Page 175 U. S. 694
Both the capture and the condemnation were within a year after the
order of the English government of January 24, 1798, instructing the
commanders of its ships to seize French and Dutch fishing vessels, and
before any revocation of that order. Lord Stowell's judgment shows
that his decision was based upon the order of 1798, as well as upon
strong evidence of fraud. Nothing more was adjudged in the case.
But some expressions in his opinion have been given so much weight
by English writers that it may be well to examine them particularly.
The opinion begins by admitting the known custom in former wars not
to capture such vessels, adding, however, "but this was a rule of
comity only, and not of legal decision." Assuming the phrase "legal
decision" to have been there used, in the sense in which courts are
accustomed to use it, as equivalent to "judicial decision," it is true that,
so far as appears, there had been no such decision on the point in
England. The word "comity" was apparently used by Lord Stowell as
synonymous with courtesy or goodwill. But the period of a hundred
years which has since elapsed is amply sufficient to have enabled what
originally may have rested in custom or comity, courtesy or
concession, to grow, by the general assent of civilized nations, into a
settled rule of international law. As well said by Sir James Mackintosh:
"In the present century, a slow and silent, but very substantial,
mitigation has taken place in the practice of war, and in proportion as
that mitigated practice has received the sanction of time, it is raised
from the rank of mere usage and becomes part of the law of nations."
Discourse on the Law of Nations 38; 1 Miscellaneous Works, 360.
The French prize tribunals, both before and after Lord Stowell's
decision, took a wholly different view of the general question. In 1780,
as already mentioned, an order in council of Louis XVI had declared
illegal the capture by a French cruiser of The John and Sarah, an
English vessel coming from Holland, laden with fresh fish. And on May
17, 1801, where a Portuguese fishing vessel, with her cargo of fish,
having no more crew than was needed for her management and for
serving the nets, on a trip of several days, had been captured
Page 175 U. S. 695
in April, 1801, by a French cruiser, three leagues off the coast of
Portugal, the Council of Prizes held that the capture was contrary to
"the principles of humanity and the maxims of international law," and
decreed that the vessel, with the fish on board, or the net proceeds of
any that had been sold, should be restored to her master. La Nostra
Segnora de la Piedad, 25 Merlin, Jurisprudence, Prise Maritime, § 3,
arts. 1, 3; S.C. 1 Pistoye et Duverdy, Prises Maritimes 331; 2 De Cussy,
Droit Maritime 166.
The English government, soon afterwards, more than once
unqualifiedly prohibited the molestation of fishing vessels employed in
catching and bringing to market fresh fish. On May 23, 1806, it was
"ordered in council that all fishing vessels under Prussian and other
colors, and engaged for the purpose of catching fish and conveying
them fresh to market, with their crews, cargoes, and stores, shall not
be molested on their fishing voyages and bringing the same to market,
and that no fishing vessels of this description shall hereafter be
molested. And the Right Honorable the Lords Commissioners of His
Majesty's Treasury, the Lords Commissioners of the Admiralty, and the
Judge of the High Court of Admiralty, are to give the necessary
directions herein as to them may respectively appertain."
5 C. Rob. 408. Again, in the order in council of May 2, 1810, which
directed that
"all vessels which shall have cleared out from any port so far under the
control of France or her allies as that British vessels may not freely
trade thereat, and which are employed in the whale fishery, or other
fishery of any description, save as hereinafter excepted, and are
returning, or destined to return either to the port from whence they
cleared, or to any other port or place at which the British flag may not
freely trade, shall be captured and condemned together with their
stores and cargoes, as prize to the captors,"
there were excepted "vessels employed in catching and conveying fish
fresh to market, such vessels not being fitted or provided for the
curing of fish." Edw.Adm. appx. L.
Wheaton, in his Digest of the Law of Maritime Captures and Prizes,
published in 1815, wrote:
"It has been usual
Page 175 U. S. 696
in maritime wars to exempt from capture fishing boats and their
cargoes, both from views of mutual accommodation between
neighboring countries, and from tenderness to a poor and industrious
order of people. This custom, so honorable to the humanity of civilized
nations, has fallen into disuse, and it is remarkable that both France
and England mutually reproach each other with that breach of good
faith which has finally abolished it."
Wheaton, Captures, c. 2, § 18.
This statement clearly exhibits Wheaton's opinion that the custom had
been a general one, as well as that it ought to remain so. His
assumption that it had been abolished by the differences between
France and England at the close of the last century was hardly justified
by the state of things when he wrote, and has not since been borne
out.
During the wars of the French Empire, as both French and English
5
writers agree, the coast fisheries were left in peace. 2 Ortolan 54; De
Boeck § 193; Hall § 148. De Boeck quaintly and truly adds, "and the
incidents of 1800 and of 1801 had no morrow -- n'eurent pas de
lendemain."
In the war with Mexico, in 1846, the United States recognized the
exemption of coast fishing boats from capture. In proof of this, counsel
have referred to records of the Navy Department, which this Court is
clearly authorized to consult upon such a question. Jones v. United
States, 137 U. S. 202; Underhill v. Hernandez, 168 U. S. 250, 168 U. S.
253.
By those records, it appears that Commodore Conner, commanding
the Home Squadron blockading the east coast of Mexico, on May 14,
1846, wrote a letter from the ship Cumberland, off Brazos Santiago,
near the southern point of Texas, to Mr. Bancroft, the Secretary of the
Navy, enclosing a copy of the commodore's "instructions to the
commanders of the vessels of the Home Squadron, showing the
principles to be observed in the blockade of the Mexican ports," one of
which was that "Mexican boats engaged in fishing on any part of the
coast will be allowed to pursue their labors unmolested," and that, on
June 10, 1846, those instructions were approved by the Navy
Department, of which Mr. Bancroft was still the head, and continued
to be until he was appointed Minister to
Page 175 U. S. 697
England in September following. Although Commodore Conner's
instructions and the Department's approval thereof do not appear in
any contemporary publication of the government, they evidently
became generally known at the time, or soon after, for it is stated in
several treatises on international law (beginning with Ortolan's second
edition, published in 1853) that the United States in the Mexican war
permitted the coast fishermen of the enemy to continue the free
exercise of their industry. 2 Ortolan (2d ed.) 49, note; (4th ed.) 55; 4
Calvo (5th ed.) § 2372; De Boeck § 194; Hall (4th ed.) § 148.
As qualifying the effect of those statements, the counsel for the United
States relied on a proclamation of Commodore Stockton, commanding
the Pacific Squadron, dated August 20, 1846, directing officers under
his command to proceed immediately to blockade the ports of
Mazatlan and San Blas, on the west coast of Mexico, and saying to
them,
"All neutral vessels that you may find there you will allow twenty days
to depart, and you will make the blockade absolute against all vessels,
except armed vessels of neutral nations. You will capture all vessels
under the Mexican flag that you may be able to take."
Navy Reports of 1846, pp. 673, 674. But there is nothing to show that
Commodore Stockton intended, or that the government approved, the
capture of coast fishing vessels.
On the contrary, General Halleck, in the preface to his work on
International Law, or Rules Regulating the Intercourse of states in
Peace and War, published in 1861, says that he began that work during
the war between the United States and Mexico "while serving on the
staff of the commander of the Pacific Squadron," and "often required
to give opinions on questions of international law growing out of the
operations of the war." Had the practice of the blockading squadron
on the west coast of Mexico during that war, in regard to fishing
vessels, differed from that approved by the Navy Department on the
east coast, General Halleck could hardly have failed to mention it when
stating the prevailing doctrine upon the subject as follows:
Page 175 U. S. 698
"Fishing boats have also, as a general rule, been exempted from the
effects of hostilities. As early as 1521, while war was raging between
Charles V and Francis, ambassadors from these two sovereigns met at
Calais, then English, and agreed that, whereas the herring fishery was
about to commence, the subjects of both belligerents engaged in this
pursuit should be safe and unmolested by the other party, and should
have leave to fish as in time of peace. In the war of 1800, the British
and French governments issued formal instructions exempting the
fishing boats of each other's subjects from seizure. This order was
subsequently rescinded by the British government on the alleged
ground that some French fishing boats were equipped as gunboats,
and that some French fishermen who had been prisoners in England
had violated their parole not to serve, and had gone to join the French
fleet at Brest. Such excuses were evidently mere pretexts, and after
some angry discussions had taken place on the subject, the British
restriction was withdrawn and the freedom of fishing was again
allowed on both sides. French writers consider this exemption as an
established principle of the modern law of war, and it has been so
recognized in the French courts, which have restored such vessels
when captured by French cruisers."
Halleck (1st ed.) c. 20, § 23.
That edition was the only one sent out under the author's own
auspices except an abridgment, entitled "Elements of International
Law and the Law of War," which he published in 1866, as he said in the
preface, to supply a suitable textbook for instruction upon the subject,
"not only in our colleges, but also in our two great national schools --
the Military and Naval Academies." In that abridgment, the statement
as to fishing boats was condensed as follows:
"Fishing boats have also, as a general rule, been exempted from the
effects of hostilities. French writers consider this exemption as an
established principle of the modern law of war, and it has been so
recognized in the French courts, which have restored such vessels
when captured by French cruisers."
Halleck's Elements, c. 20, § 21.
In the treaty of peace between the United States and Mexico,
Page 175 U. S. 699
in 1848, were inserted the very words of the earlier treaties with
Prussia, already quoted, forbidding the hostile molestation or seizure
in time of war of the persons, occupations, houses, or goods of
fishermen. 9 Stat. 939, 940.
Wharton's Digest of the International Law of the United States,
published by authority of Congress in 1886 and 1887, embodies
General Halleck's fuller statement, above quoted, and contains
nothing else upon the subject. 3 Whart. Int.Law Dig. § 345, p. 315; 2
Halleck (Eng. eds. 1873 and 1878) p. 151.
France in the Crimean war in 1854, and in her wars with Italy in 1859
and with Germany in 1870, by general orders, forbade her cruisers to
trouble the coast fisheries or to seize any vessel or boat engaged
therein unless naval or military operations should make it necessary.
Calvo, § 2372; Hall, § 148; 2 Ortolan (4th ed.) 449; 10 Revue de Droit
Internationale (1878) 399.
Calvo says that, in the Crimean War,
"notwithstanding her alliance with France and Italy, England did not
follow the same line of conduct, and her cruisers in the Sea of Azof
destroyed the fisheries, nets, fishing implements, provisions, boats,
and even the cabins of the inhabitants of the coast."
Calvo § 2372. And a Russian writer on prize law remarks that those
depredations,
"having brought ruin on poor fishermen and inoffensive traders, could
not but leave a painful impression on the minds of the population,
without impairing in the least the resources of the Russian
government."
Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports of
the English naval officers put a different face on the matter by stating
that the destruction in question was part of a military measure,
conducted with the cooperation of the French ships, and pursuant to
instructions of the English admiral
"to clear the seaboard of all fish stores, all fisheries and mills, on a
scale beyond the wants of the neighboring population, and indeed of
all things destined to contribute to the maintenance of the enemy's
army in the Crimea,"
and that the property destroyed consisted of large fishing
establishments and storehouses of the Russian government, numbers
of heavy launches, and enormous quantities of nets and gear, salted
fish, corn,
Page 175 U. S. 700
and other provisions intended for the supply of the Russian army.
United Service Journal of 1855, pt. 3, pp. 108-112.
Since the English orders in council of 1806 and 1810, before quoted, in
favor of fishing vessels employed in catching and bringing to market
fresh fish, no instance has been found in which the exemption from
capture of private coast fishing vessels honestly pursuing their
peaceful industry has been denied by England or by any other nation.
6
And the Empire of Japan (the last state admitted into the rank of
civilized nations), by an ordinance promulgated at the beginning of its
war with China in August, 1894, established prize courts and ordained
that "the following enemy's vessels are exempt from detention,"
including in the exemption "boats engaged in coast fisheries," as well
as "ships engaged exclusively on a voyage of scientific discovery,
philanthrophy, or religious mission." Takahashi, International Law 11,
178.
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for
their determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must
be had to the customs and usages of civilized nations, and, as evidence
of these, to the works of jurists and commentators who by years of
labor, research, and experience have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are
resorted to by judicial tribunals not for the speculations of their
authors concerning what the law ought to be, but for trustworthy
evidence of what the law really is. Hilton v. Guyot, 159 U. S. 113, 159
U. S. 163-164, 159 U. S. 214-215.
Wheaton places among the principal sources international law
"text writers of authority, showing what is the approved usage of
nations, or the general opinion respecting their mutual conduct, with
the definitions and modifications introduced by general consent."
As to these, he forcibly observes:
"Without wishing to exaggerate the importance of these writers or to
substitute, in any case, their authority for the principles of reason, it
may be affirmed that they are generally
Page 175 U. S. 701
impartial in their judgment. They are witnesses of the sentiments and
usages of civilized nations, and the weight of their testimony increases
every time that their authority is invoked by statesmen, and every year
that passes without the rules laid down in their works being impugned
by the avowal of contrary principles."
Wheaton, International Law (8th ed.), § 15.
Chancellor Kent says:
"In the absence of higher and more authoritative sanctions, the
ordinances of foreign states, the opinions of eminent statesmen, and
the writings of distinguished jurists are regarded as of great
consideration on questions not settled by conventional law. In cases
where the principal jurists agree, the presumption will be very great in
favor of the solidity of their maxims, and no civilized nation that does
not arrogantly set all ordinary law and justice at defiance will venture
to disregard the uniform sense of the established writers on
international law."
1 Kent, Com. 18.
It will be convenient, in the first place, to refer to some leading French
treatises on international law, which deal with the question now
before us, not as one of the law of France only, but as one determined
by the general consent of civilized nations.
"Enemy ships," say Pistoye and Duverdy, in their Treatise on Maritime
Prizes, published in 1855,
"are good prize. Not all, however, for it results from the unanimous
accord of the maritime powers that an exception should be made in
favor of coast fishermen. Such fishermen are respected by the enemy
so long as they devote themselves exclusively to fishing."
1 Pistoye et Duverdy, Tit. 6, c. 1, p. 314.
De Cussy, in his work on the Phases and Leading cases of the Maritime
Law of Nations -- Phases et Causes Celebres du Droit Maritime des
Nations -- published in 1856, affirms in the clearest language the
exemption from capture of fishing boats, saying, in lib. 1, Tit. 3, § 36,
that
"in time of war, the freedom of fishing is respected by belligerents;
fishing boats are considered as neutral; in law, as in principle, they are
not subject either to capture or to confiscation,"
and that in lib. 2, c. 20, he will state "several facts and several
decisions
Page 175 U. S. 702
which prove that the perfect freedom and neutrality of fishing boats
are not illusory." 1 De Cussy, p. 291. And in the chapter so referred to,
entitled De la Liberte et de la Neutralite Parfaite de la Peche, besides
references to the edicts and decisions in France during the French
Revolution, is this general statement:
"If one consulted only positive international law -- 1e droit des gens
positif -- [by which is evidently meant international law expressed in
treaties, decrees, or other public acts, as distinguished from what may
be implied from custom or usage], fishing boats would be subject, like
all other trading vessels, to the law of prize; a sort of tacit agreement
among all European nations frees them from it, and several official
declarations have confirmed this privilege in favor of 'a class of men
whose hard and ill rewarded labor, commonly performed by feeble
and aged hands, is so foreign to the operations of war.'"
2 De Cussy 164, 165.
Ortolan, in the fourth edition of his Regles Internationales et
Diplomatie de la Mer, published in 1864, after stating the general rule
that the vessels and cargoes of subjects of the enemy are lawful prize,
says:
"Nevertheless, custom admits an exception in favor of boats engaged
in the coast fishery; these boats, as well as their crews, are free from
capture and exempt from all hostilities. The coast-fishing industry is, in
truth, wholly pacific, and of much less importance in regard to the
national wealth that it may produce than maritime commerce or the
great fisheries. Peaceful and wholly inoffensive, those who carry it on,
among whom women are often seen, may be called the harvesters of
the territorial seas, since they confine themselves to gathering in the
products thereof; they are for the most part poor families who seek in
this calling hardly more than the means of gaining their livelihood."
2 Ortolan 51. Again, after observing that there are very few solemn
public treaties which make mention of the immunity of fishing boats in
time of war, he says:
"From another point of view, the custom which sanctions this
immunity is not so general that it can be considered as making an
absolute international rule; but it has been so often put in practice,
and, besides, it accords so well with the rule in use in wars on
Page 175 U. S. 703
land, in regard to peasants and husbandmen, to whom coast
fishermen may be likened, that it will doubtless continue to be
followed in maritime wars to come."
2 Ortolan 55.
No international jurist of the present day has a wider or more
deserved reputation than Calvo, who, though writing in French, is a
citizen of the Argentine Republic employed in its diplomatic service
abroad. In the fifth edition of his great work on international law,
published in 1896, he observes, in § 2366, that the international
authority of decisions in particular cases by the prize courts of France,
of England, and of the United States is lessened by the fact that the
principles on which they are based are largely derived from the
internal legislation of each country, and yet the peculiar character of
maritime wars, with other considerations, gives to prize jurisprudence
a force and importance reaching beyond the limits of the country in
which it has prevailed. He therefore proposes here to group together a
number of particular cases proper to serve as precedents for the
solution of grave questions of maritime law in regard to the capture of
private property as prize of war. Immediately, in § 2367, he goes on to
say:
"Notwithstanding the hardships to which maritime wars subject
private property, notwithstanding the extent of the recognized rights
of belligerents, there are generally exempted, from seizure and
capture, fishing vessels."
In the next section, he adds: "This exception is perfectly justiciable --
Cette exception est parfaitement justiciable" -- that is to say, belonging
to judicial jurisdiction or cognizance. Littre, Dist. voc. Justiciable; Hans
v. Louisiana, 134 U. S. 1, 134 U. S. 15. Calvo then quotes Ortolan's
description, above cited, of the nature of the coast-fishing industry,
and proceeds to refer in detail to some of the French precedents, to
the acts of the French and English governments in the times of Louis
XVI and of the French Revolution, to the position of the United States
in the war with Mexico, and of France in later wars, and to the action
of British cruisers in the Crimean war. And he concludes his discussion
of the subject, in § 2373, by affirming the exemption of the coast
7
fishery and pointing out the distinction in this regard between the
coast fishery and
Page 175 U. S. 704
what he calls the great fishery, for cod, whales, or seals, as follows:
"The privilege of exemption from capture, which is generally acquired
by fishing vessels plying their industry near the coasts, is not extended
in any country to ships employed on the high sea in what is called the
great fishery, such as that for the cod, for the whale or the sperm
whale, or for the seal or sea calf. These ships are, in effect, considered
as devoted to operations which are at once commercial and industrial
-- Ces navires sont en effect consideres comme adonnes a des
operations a la fois commerciales et industrielles."
The distinction is generally recognized. 2 Ortolan 54; De Boeck § 196;
Hall, § 148. See also The Susa, 2 C. Rob. 251; The Johan, Edw.Adm. 275,
and appx. L.
The modern German books on international law, cited by the counsel
for the appellants, treat the custom by which the vessels and
implements of coast fishermen are exempt from seizure and capture
as well established by the practice of nations. Heffter § 137; 2
Kalterborn § 237, p. 480; Bluntschli § 667; Perels § 37, p. 217.
De Boeck, in his work on Enemy Private Property under Enemy's Flag --
De la Propriete Privee Ennemie sous Pavillon Ennemi -- published in
1882, and the only continental treatise cited by the counsel for the
United States, says in § 191:
"A usage very ancient, if not universal, withdraws from the right of
capture enemy vessels engaged in the coast fishery. The reason of this
exception is evident; it would have been too hard to snatch from poor
fishermen the means of earning their bread. . . . The exemption
includes the boats, the fishing implements, and the cargo of fish."
Again, in § 195:
"It is to be observed that very few treatises sanction in due form this
immunity of the coast fishery. . . . There is, then, only a custom. But
what is its character? Is it so fixed and general that it can be raised to
the rank of a positive and formal rule of international law?"
After discussing the statements of other writers, he approves the
opinion of Ortolan (as expressed in the last sentence above quoted
from his work) and says that, at bottom, it differs by a shade only from
that formulated by Calvo and by some of the German jurists, and that
"it is more exact,
Page 175 U. S. 705
without ignoring the imperative character of the humane rule in
question -- elle est plus exacte, sans meconnaitre le caractere imperatif
de la regle d'humanite dont il s'agit."
And in § 196 he defines the limits of the rule as follows:
"But the immunity of the coast fishery must be limited by the reasons
which justify it. The reasons of humanity and of harmlessness -- les
raisons d'humanite et d'innocuite -- which militate in its favor do not
exist in the great fishery, such as the cod fishery; ships engaged in that
fishery devote themselves to truly commercial operations, which
employ a large number of seamen. And these same reasons cease to
be applicable to fishing vessels employed for a warlike purpose, to
those which conceal arms, or which exchange signals of intelligence
with ships of war; but only those taken in the fact can be rigorously
treated; to allow seizure by way of preventive would open the door to
every abuse, and would be equivalent to a suppression of the
immunity."
Two recent English text writers cited at the bar (influenced by what
Lord Stowell said a century since) hesitate to recognize that the
exemption of coast fishing vessels from capture has now become a
settled rule of international law. Yet they both admit that there is little
real difference in the views, or in the practice, of England and of other
maritime nations, and that no civilized nation at the present day would
molest coast fishing vessels so long as they were peaceably pursuing
their calling and there was no danger that they or their crews might be
of military use to the enemy. Hall, in § 148 of the fourth edition of his
Treatise on International Law, after briefly sketching the history of the
positions occupied by France and England at different periods, and by
the United States in the Mexican war, goes on to say:
"In the foregoing facts there is nothing to show that much real
difference has existed in the practice of the maritime countries.
England does not seem to have been unwilling to spare fishing vessels
so long as they are harmless, and it does not appear that any state has
accorded them immunity under circumstances of inconvenience to
itself. It is likely that all nations would now refrain from molesting
them as a general rule, and would capture
Page 175 U. S. 706
them so soon as any danger arose that they or their crews might be of
military use to the enemy, and it is also likely that it is impossible to
grant them a more distinct exemption."
So, T. J.Lawrence, in § 206 of his Principles of International Law, says:
"The difference between the English and the French view is more
apparent than real, for no civilized belligerent would now capture the
boats of fishermen plying their avocation peaceably in the territorial
waters of their own state, and no jurist would seriously argue that
their immunity must be respected if they were used for warlike
purposes, as were the smacks belonging to the northern ports of
France when Great Britain gave the order to capture them in 1800."
But there are writers of various maritime countries not yet cited too
important to be passed by without notice.
Jan Helenus Ferguson, Netherlands Minister to China, and previously
in the naval and in the colonial service of his country, in his Manual of
International Law for the Use of Navies, Colonies, and Consulates,
published in 1882, writes:
"An exception to the usage of capturing enemy's private vessels at sea
is the coast fishery. . . . This principle of immunity from capture of
fishing boats is generally adopted by all maritime powers, and in actual
warfare they are universally spared so long as they remain harmless."
2 Ferguson § 212.
Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for
Naval Officers, published at Vienna in 1872 under the auspices of
Admiral Tegetthoff, says:
"Regarding the capture of enemy property, an exception must be
mentioned, which is a universal custom. Fishing vessels which belong
to the adjacent coast, and whose business yields only a necessary
livelihood, are, from considerations of humanity, universally excluded
from capture."
1 Attlmayr 61.
Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in
his Elementary Treatise on Maritime International Law, adopted by
royal order as a textbook in the naval schools of Spain and published at
Madrid in 1873, concludes his chapter "Of the lawfulness of prizes"
with these words:
"It remains to be added that the custom of all civilized peoples
excludes from capture and from all kind of hostility the
Page 175 U. S. 707
fishing vessels of the enemy's coasts, considering this industry as
absolutely inoffensive, and deserving, from its hardships and
usefulness, of this favorable exception. It has been thus expressed in
very many international conventions, so that it can be deemed an
incontestable principle of law at least among enlightened nations."
Negrin, Tit. 3, c. 1, § 310.
Carlos Testa, captain in the Portuguese Navy and professor in the naval
school at Lisbon, in his work on Public International Law, published in
French at Paris in 1886, when discussing the general right of capturing
enemy ships, says:
"Nevertheless, in this, customary law establishes an exception of
immunity in favor of coast fishing vessels. Fishing is so peaceful an
industry, and is generally carried on by so poor and so hardworking a
class of men, that it is likened, in the territorial waters of the enemy's
country, to the class of husbandmen who gather the fruits of the earth
for their livelihood. The examples and practice generally followed
establish this humane and beneficent exception as an international
rule, and this rule may be considered as adopted by customary law
and by all civilized nations."
Testa, pt. 3, c. 2, in 18 Bibliotheque International et Diplomatique, pp.
152, 153.
No less clearly and decisively speaks the distinguished Italian jurist,
Pasquale Fiore, in the enlarged edition of his exhaustive work on Public
International Law, published at Paris in 1885-1886, saying:
"The vessels of fishermen have been generally declared exempt from
confiscation because of the eminently peaceful object of their humble
8
industry and of the principles of equity and humanity. The exemption
includes the vessel, the implements of fishing, and the cargo resulting
from the fishery. This usage, eminently humane, goes back to very
ancient times, and although the immunity of the fishery along the
coasts may not have been sanctioned by treaties, yet it is considered
today as so definitely established that the inviolability of vessels
devoted to that fishery is proclaimed by the publicists as a positive rule
of international law, and is generally respected by the nations.
Consequently we shall lay down the following rule: (a) vessels
belonging to citizens of the enemy state, and devoted to fishing
Page 175 U. S. 708
along the coasts, cannot be subject to capture; (b) such vessels,
however, will lose all right of exemption when employed for a warlike
purpose; (c) there may nevertheless be subjected to capture vessels
devoted to the great fishery in the ocean, such as those employed in
the whale fishery, or in that for seals or sea calves."
3 Fiore § 1421.
This review of the precedents and authorities on the subject appears
to us abundantly to demonstrate that, at the present day, by the
general consent of the civilized nations of the world, and
independently of any express treaty or other public act, it is an
established rule of international law, founded on considerations of
humanity to a poor and industrious order of men, and of the mutual
convenience of belligerent states, that coast fishing vessels, with their
implements and supplies, cargoes and crews, unarmed and honestly
pursuing their peaceful calling of catching and bringing in fresh fish,
are exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their
vessels if employed for a warlike purpose, or in such a way as to give
aid or information to the enemy, nor when military or naval operations
create a necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels employed on
the high sea in taking whales or seals or cod or other fish which are not
brought fresh to market, but are salted or otherwise cured and made a
regular article of commerce.
This rule of international law is one which prize courts administering
the law of nations are bound to take judicial notice of, and to give
effect to, in the absence of any treaty or other public act of their own
government in relation to the matter.
Calvo, in a passage already quoted, distinctly affirms that the
exemption of coast fishing vessels from capture is perfectly justiciable,
or, in other words, of judicial jurisdiction or cognizance. Calvo § 2368.
Nor are judicial precedents wanting in support of the view that this
exemption, or a somewhat analogous one, should be recognized and
declared by a prize court.
Page 175 U. S. 709
By the practice of all civilized nations, vessels employed only for the
purposes of discovery or science are considered as exempt from the
contingencies of war, and therefore not subject to capture. It has been
usual for the government sending out such an expedition to give
notice to other powers, but it is not essential. 1 Kent, Com. 91, note;
Halleck, c. 20, § 22; Calvo § 2376; Hall § 138.
In 1813, while the United States were at war with England, an
American vessel on her voyage from Italy to the United States was
captured by an English ship, and brought into Halifax, in Nova Scotia,
and, with her cargo, condemned as lawful prize by the court of vice
admiralty there. But a petition for the restitution of a case of paintings
and engravings which had been presented to and were owned by the
Academy of Arts in Philadelphia was granted by Dr. Croke, the judge of
that court, who said:
"The same law of nations which prescribes that all property belonging
to the enemy shall be liable to confiscation has likewise its
modifications and relaxations of that rule. The arts and sciences are
admitted amongst all civilized nations as forming an exception to the
severe rights of warfare, and as entitled to favor and protection. They
are considered not as the peculium of this or of that nation, but as the
property of mankind at large, and as belonging to the common
interests of the whole species."
And he added that there had been "innumerable cases of the mutual
exercise of this courtesy between nations in former wars." The
Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482.
In 1861, during the war of the Rebellion, a similar decision was made
in the District Court of the United States for the Eastern District of
Pennsylvania in regard to two cases of books belonging and consigned
to a university in North Carolina. Judge Cadwalader, in ordering these
books to be liberated from the custody of the marshal and restored to
the agent of the university, said:
"Though this claimant, as the resident of a hostile district, would not
be entitled to restitution of the subject of a commercial adventure in
books, the purpose of the shipment in question gives to it a different
Page 175 U. S. 710
character. The United States, in prosecuting hostilities for the
restoration of their constitutional authority, are compelled incidentally
to confiscate property captured at sea, of which the proceeds would
otherwise increase the wealth of that district. But the United States
are not at war with literature in that part of their territory."
He then referred to the decision in Nova Scotia, and to the French
decisions upon cases of fishing vessels, as precedents for the decree
which he was about to pronounce, and he added that, without any
such precedents, he should have had no difficulty in liberating these
books. The Amelia, 4 Philadelphia 417.
In Brown v. United States, 8 Cranch 110, there are expressions of Chief
Justice Marshall which, taken by themselves, might seem inconsistent
with the position above maintained, of the duty of a prize court to take
judicial notice of a rule of international law, established by the general
usage of civilized nations, as to the kind of property subject to capture.
But the actual decision in that case, and the leading reasons on which
it was based, appear to us rather to confirm our position. The principal
question there was whether personal property of a British subject,
found on land in the United States at the beginning of the last war with
Great Britain, could lawfully be condemned as enemy's property on a
libel filed by the attorney of the United States, without a positive act of
Congress. The conclusion of the Court was
"that the power of confiscating enemy property is in the legislature,
and that the legislature has not yet declared its will to confiscate
property which was within our territory at the declaration of war."
8 Cranch 12 U. S. 129. In showing that the declaration of war did not,
of itself, vest the Executive with authority to order such property to be
confiscated, the Chief Justice relied on the modern usages of nations,
saying:
"The universal practice of forbearing to seize and confiscate debts and
credits, the principle universally received that the right to them revives
on the restoration of peace, would seem to prove that war is not an
absolute confiscation of this property, but simply confers the right of
confiscation,"
and again:
"The modern rule, then, would seem to be that tangible property
Page 175 U. S. 711
belonging to an enemy, and found in the country at the
commencement of war, ought not to be immediately confiscated, and
in almost every commercial treaty, an article is inserted stipulating for
the right to withdraw such property."
8 Cranch 12 U. S. 123-125. The decision that enemy property on land,
which by the modern usage of nations is not subject to capture as
prize of war, cannot be condemned by a prize court, even by direction
of the Executive, without express authority from Congress appears to
us to repel any inference that coast fishing vessels, which are exempt
by the general consent of civilized nations from capture and which no
act of Congress or order of the President has expressly authorized to
be taken and confiscated, must be condemned by a prize court for
want of a distinct exemption in a treaty or other public act of the
government.
To this subject in more than one aspect are singularly applicable the
words uttered by Mr. Justice Strong, speaking for this Court:
"Undoubtedly no single nation can change the law of the sea. The law
is of universal obligation, and no statute of one or two nations can
create obligations for the world. Like all the laws of nations, it rests
upon the common consent of civilized communities. It is of force not
because it was prescribed by any superior power, but because it has
been generally accepted as a rule of conduct. Whatever may have
9
been its origin, whether in the usages of navigation, or in the
ordinances of maritime states, or in both, it has become the law of the
sea only by the concurrent sanction of those nations who may be said
to constitute the commercial world. Many of the usages which prevail,
and which have the force of law, doubtless originated in the positive
prescriptions of some single state, which were at first of limited effect,
but which, when generally accepted, became of universal obligation."
"This is not giving to the statutes of any nation extraterritorial effect. It
is not treating them as general maritime laws, but it is recognition of
the historical fact that, by common consent of mankind these rules
have been acquiesced in as of general obligation. Of that fact we think
we may take judicial notice. Foreign municipal laws
Page 175 U. S. 712
must indeed be proved as facts, but it is not so with the law of
nations."
The Scotia, 14 Wall. 170, 81 U. S. 187-188.
The position taken by the United States during the recent war with
Spain was quite in accord with the rule of international law, now
generally recognized by civilized nations, in regard to coast fishing
vessels.
On April 21, 1898, the Secretary of the Navy gave instructions to
Admiral Sampson, commanding the North Atlantic Squadron, to
"immediately institute a blockade of the north coast of Cuba,
extending from Cardenas on the east to Bahia Honda on the west."
Bureau of Navigation Report of 1898, appx. 175. The blockade was
immediately instituted accordingly. On April 22, the President issued a
proclamation declaring that the United States had instituted and
would maintain that blockade "in pursuance of the laws of the United
States, and the law of nations applicable to such cases." 30 Stat. 1769.
And by the act of Congress of April 25, 1898, c. 189, it was declared
that the war between the United States and Spain existed on that day,
and had existed since and including April 21, 30 Stat. 364.
On April 26, 1898, the President issued another proclamation which,
after reciting the existence of the war as declared by Congress,
contained this further recital:
"It being desirable that such war should be conducted upon principles
in harmony with the present views of nations and sanctioned by their
recent practice."
This recital was followed by specific declarations of certain rules for
the conduct of the war by sea, making no mention of fishing vessels.
30 Stat. 1770. But the proclamation clearly manifests the general
policy of the government to conduct the war in accordance with the
principles of international law sanctioned by the recent practice of
nations.
On April 28, 1898 (after the capture of the two fishing vessels now in
question), Admiral Sampson telegraphed to the Secretary of the Navy
as follows:
"I find that a large number of fishing schooners are attempting to get
into Havana from their fishing grounds near the Florida reefs and
coasts. They are generally manned by excellent seamen, belonging
Page 175 U. S. 713
to the maritime inscription of Spain, who have already served in the
Spanish navy, and who are liable to further service. As these trained
men are naval reserves, most valuable to the Spaniards as
artillerymen, either afloat or ashore, I recommend that they should be
detained prisoners of war, and that I should be authorized to deliver
them to the commanding officer of the army at Key West."
To that communication the Secretary of the Navy, on April 30, 1898,
guardedly answered:
"Spanish fishing vessels attempting to violate blockade are subject,
with crew, to capture, and any such vessel or crew considered likely to
aid enemy may be detained."
Bureau of Navigation Report of 1898, appx. 178. The admiral's
dispatch assumed that he was not authorized, without express order,
to arrest coast fishermen peaceably pursuing their calling, and the
necessary implication and evident intent of the response of the Navy
Department were that Spanish coast fishing vessels and their crews
should not be interfered with so long as they neither attempted to
violate the blockade nor were considered likely to aid the enemy.
The Paquete Habana, as the record shows, was a fishing sloop of 25
tons burden, sailing under the Spanish flag, running in and out of
Havana, and regularly engaged in fishing on the coast of Cuba. Her
crew consisted of but three men, including the master, and, according
to a common usage in coast fisheries, had no interest in the vessel, but
were entitled to two-thirds of her catch, the other third belonging to
her Spanish owner, who, as well as the crew, resided in Havana. On
her last voyage, she sailed from Havana along the coast of Cuba, about
two hundred miles, and fished for twenty-five days off the cape at the
west end of the island, within the territorial waters of Spain, and was
going back to Havana with her cargo of live fish when she was
captured by one of the blockading squadron on April 25, 1898. She had
no arms or ammunition on board; she had no knowledge of the
blockade, or even of the war, until she was stopped by a blockading
vessel; she made no attempt to run the blockade, and no resistance at
the time of the capture; nor was there any evidence
Page 175 U. S. 714
whatever of likelihood that she or her crew would aid the enemy.
In the case of the Lola, the only differences in the facts were that she
was a schooner of 35 tons burden, and had a crew of six men,
including the master; that, after leaving Havana and proceeding some
two hundred miles along the coast of Cuba, she went on, about one
hundred miles farther, to the coast of Yucatan, and there fished for
eight days, and that, on her return, when near Bahia Honda on the
coast of Cuba, she was captured, with her cargo of live fish, on April
27, 1898. These differences afford no ground for distinguishing the
two cases.
Each vessel was of a moderate size, such as is not unusual in coast
fishing smacks, and was regularly engaged in fishing on the coast of
Cuba. The crew of each were few in number, had no interest in the
vessel, and received, in return for their toil and enterprise, two-thirds
of her catch, the other third going to her owner by way of
compensation for her use. Each vessel went out from Havana to her
fishing ground and was captured when returning along the coast of
Cuba. The cargo of each consisted of fresh fish, caught by her crew
from the sea and kept alive on board. Although one of the vessels
extended her fishing trip across the Yucatan channel and fished on the
coast of Yucatan, we cannot doubt that each was engaged in the coast
fishery, and not in a commercial adventure, within the rule of
international law.
The two vessels and their cargoes were condemned by the district
court as prize of war; the vessels were sold under its decrees, and it
does not appear what became of the fresh fish of which their cargoes
consisted.
Upon the facts proved in either case, it is the duty of this Court, sitting
as the highest prize court of the United States and administering the
law of nations, to declare and adjudge that the capture was unlawful
and without probable cause, and it is therefore, in each case
Ordered, that the decree of the district court be reversed, and the
proceeds of the sale of the vessel, together with the proceeds of any
sale of her cargo, be restored to the claimant, with damages and costs.
Page 175 U. S. 715
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE
HARLAN and MR. JUSTICE McKENNA, dissenting:
The district court held these vessels and their cargoes liable because
not "satisfied that, as a matter of law, without any ordinance, treaty,
or proclamation, fishing vessels of this class are exempt from seizure."
This Court holds otherwise not because such exemption is to be found
in any treaty, legislation, proclamation, or instruction granting it, but
on the ground that the vessels were exempt by reason of an
established rule of international law applicable to them which it is the
duty of the court to enforce.
I am unable to conclude that there is any such established
international rule, or that this Court can properly revise action which
must be treated as having been taken in the ordinary exercise of
discretion in the conduct of war.
In cannot be maintained "that modern usage constitutes a rule which
acts directly upon the thing itself by its own force, and not through the
sovereign power." That position was disallowed in Brown v. United
States, 8 Cranch 110, 12 U. S. 128, and Chief Justice Marshall said:
"This usage is a guide which the sovereign follows or abandons at his
10
will. The rule, like other precepts of morality, of humanity, and even of
wisdom, is addressed to the judgment of the sovereign, and although
it cannot be disregarded by him without obloquy, yet it may be
disregarded. The rule is in its nature flexible. It is subject to infinite
modification. It is not an immutable rule of law, but depends on
political considerations which may continually vary."
The question in that case related to the confiscation of the property of
the enemy on land within our own territory, and it was held that
property so situated could not be confiscated without an act of
Congress. The Chief Justice continued:
"Commercial nations in the situation of the United States have always
a considerable quantity of property in the possession of their
neighbors. When war breaks out, the question what shall be done with
enemy property in our country is a
Page 175 U. S. 716
question rather of policy than of law. The rule which we apply to the
property of our enemy will be applied by him to the property of our
citizens. Like all other questions of policy, it is proper for the
consideration of a department which can modify it at will, not for the
consideration of a department which can pursue only the law as it is
written. It is proper for the consideration of the legislature, not of the
executive or judiciary."
This case involves the capture of enemy's property on the sea, and
executive action, and if the position that the alleged rule ex proprio
vigore limits the sovereign power in war be rejected, then I understand
the contention to be that by reason of the existence of the rule, the
proclamation of April 26 must be read as if it contained the exemption
in terms, or the exemption must be allowed because the capture of
fishing vessels of this class was not specifically authorized.
The preamble to the proclamation stated, it is true, that it was
desirable that the war "should be conducted upon principles in
harmony with the present views of nations and sanctioned by their
recent practice," but the reference was to the intention of the
government "not to resort to privateering, but to adhere to the rules
of the Declaration of Paris," and the proclamation spoke for itself. The
language of the preamble did not carry the exemption in terms, and
the real question is whether it must be allowed because not
affirmatively withheld -- or, in other words, because such captures
were not in terms directed.
These records show that the Spanish sloop Paquete Habana "was
captured as a prize of war by the U.S.S. Castine" on April 25, and "was
delivered" by the Castine's commander "to Rear Admiral Wm. T.
Sampson (commanding the North Atlantic Squadron)," and thereupon
"turned over" to a prize master with instructions to proceed to Key
West.
And that the Spanish schooner Lola "was captured as a prize of war by
the U.S.S. Dolphin," April 27, and "was delivered" by the Dolphin's
commander "to Rear Admiral Wm. T. Sampson (commanding the
North Atlantic Squadron)," and thereupon "turned over" to a prize
master with instructions to proceed to Key West.
Page 175 U. S. 717
That the vessels were accordingly taken to Key West and there libeled,
and that the decrees of condemnation were entered against them May
30.
It is impossible to concede that the Admiral ratified these captures in
disregard of established international law and the proclamation, or
that the President, if he had been of opinion that there was any
infraction of law or proclamation, would not have intervened prior to
condemnation.
The correspondence of April 28, 30, between the Admiral and the
Secretary of the Navy, quoted from in the principal opinion, was
entirely consistent with the validity of the captures.
The question put by the Admiral related to the detention as prisoners
of war of the persons manning the fishing schooners "attempting to
get into Havana." Noncombatants are not so detained except for
special reasons. Sailors on board enemy's trading vessels are made
prisoners because of their fitness for immediate use on ships of war.
Therefore the Admiral pointed out the value of these fishing seamen
to the enemy, and advised their detention. The Secretary replied that
if the vessels referred to were "attempting to violate blockade," they
were subject "with crew" to capture, and also that they might be
detained if "considered likely to aid enemy." The point was whether
these crews should be made prisoners of war. Of course, they would
be liable to be if involved in the guilt of blockade running, and the
Secretary agreed that they might be on the other ground in the
Admiral's discretion.
All this was in accordance with the rules and usages of international
law, with which, whether in peace or war, the naval service has always
been necessarily familiar.
I come then to examine the proposition
"that at the present day, by the general consent of the civilized nations
of the world and independently of any express treaty or other public
act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men,
and of the mutual convenience of belligerent states, that coast fishing
vessels, with their implements and supplies,
Page 175 U. S. 718
cargoes, and crews, unarmed, and honestly pursuing their peaceful
calling of catching and bringing in of fresh fish, are exempt from
capture as prize of war."
This, it is said, is a rule
"which prize courts, administering the law of nations, are bound to
take judicial notice of, and to give effect to, in the absence of treaty or
other public act of their own government."
At the same time, it is admitted that the alleged exemption does not
apply
"to coast fishermen or their vessels if employed for a warlike purpose
or in such a way as to give aid or information to the enemy, nor when
military or naval operations create a necessity to which all private
interests must give way,"
and further that the exemption has not
"been extended to ships or vessels employed on the high sea in taking
whales or seals, or cod or other fish which are not brought fresh to
market, but are salted or otherwise cured and made a regular article of
commerce."
It will be perceived that the exceptions reduce the supposed rule to
very narrow limits, requiring a careful examination of the facts in order
to ascertain its applicability, and the decision appears to me to go
altogether too far in respect of dealing with captures directed or
ratified by the officer in command.
But were these two vessels within the alleged exemption? They were
of twenty-five and thirty-five tons burden, respectively. They carried
large tanks in which the fish taken were kept alive. They were owned
by citizens of Havana, and the owners and the masters and crew were
to be compensated by shares of the catch. One of them had been two
hundred miles from Havana, off Cape San Antonio, for twenty-five
days, and the other for eight days off the coast of Yucatan. They
belonged, in short, to the class of fishing or coasting vessels of from
five to twenty tons burden, and from twenty tons upwards, which,
when licensed or enrolled as prescribed by the Revised Statutes, are
declared to be vessels of the United States, and the shares of whose
men, when the vessels are employed in fishing, are regulated by
statute. They were engaged in what were substantially commercial
ventures, and the mere fact that the fish were kept alive by
contrivances
Page 175 U. S. 719
for that purpose -- a practice of considerable antiquity -- did not
render them any the less an article of trade than if they had been
brought in cured.
I do not think that, under the circumstances, the considerations which
have operated to mitigate the evils of war in respect of individual
harvesters of the soil can properly be invoked on behalf of these hired
vessels as being the implements of like harvesters of the sea. Not only
so as to the owners, but as to the masters and crews. The principle
which exempts the husbandman and his instruments of labor exempts
the industry in which he is engaged, and is not applicable in protection
of the continuance of transactions of such character and extent as
these.
In truth, the exemption of fishing craft is essentially an act of grace,
and not a matter of right, and it is extended or denied as the exigency
11
is believed to demand. custom relied on as consecrating the immunity is not so general as to
It is, said Sir William Scott, "a rule of comity only, and not of legal create an absolute international rule; Heffter, Calvo, and others are to
decision." the contrary. Their lucubrations may be persuasive, but not
The modern view is thus expressed by Mr. Hall: authoritative.
"England does not seem to have been unwilling to spare fishing vessels In my judgment, the rule is that exemption from the rigors of war is in
so long as they are harmless, and it does not appear that any state has the control of the Executive. He is bound by no immutable rule on the
accorded them immunity under circumstances of inconvenience to subject. It is for him to apply, or to modify, or to deny altogether such
itself. It is likely that all nations would now refrain from molesting immunity as may have been usually extended.
them as a general rule, and would capture them so soon as any danger Page 175 U. S. 721
arose that they or their crews might be of military use to the enemy,
and it is also likely that it is impossible to grant them a more distinct Exemptions may be designated in advance or granted according to
exemption." circumstances, but carrying on war involves the infliction of the
In the Crimean war, 1854-55, none of the orders in council, in terms, hardships of war, at least to the extent that the seizure or destruction
either exempted or included fishing vessels, yet the allied squadrons of enemy's property on sea need not be specifically authorized in
swept the Sea of Azof of all craft capable of furnishing the means of order to be accomplished.
transportation, and the English admiral in the Gulf of Finland directed Being of opinion that these vessels were not exempt as matter of law, I
the destruction of all Russian coasting vessels not of sufficient value to am constrained to dissent from the opinion and judgment of the
be detained as prizes except "boats or small craft which may be found Court, and my brothers HARLAN and McKENNA concur in this dissent.
empty at anchor, and not trafficking." -----
It is difficult to conceive of a law of the sea of universal obligation to On January 29, 1900, the Court in each case, on motion of the Solicitor
which Great Britain has not acceded. And I General in behalf of the United States, and after argument of counsel
Page 175 U. S. 720 thereon, and to secure the carrying out of the opinion and decree of
am not aware of adequate foundation for imputing to this country the this Court according to their true meaning and intent, ordered that the
adoption of any other than the English rule. decree be so modified as to direct that the damages to be allowed
In his lectures on International Law at the Naval Law College, the late shall be compensatory only, and not punitive.
Dr. Freeman Snow laid it down that the exemption could not be
asserted as a rule of international law. These lectures were edited by
Commodore Stockton and published under the direction of the
Secretary of the Navy in 1895, and, by that department, in a second
edition, in 1898, so that in addition to the well known merits of their
author, they possess the weight to be attributed to the official
imprimatur. Neither our treaties nor settled practice are opposed to
that conclusion.
In view of the circumstances surrounding the breaking out of the
Mexican war, Commodore Conner, commanding the Home Squadron,
on May 14, 1846, directed his officers, in respect of blockade, not to
molest "Mexican boats engaged exclusively in fishing on any part of
the coast," presumably small boats in proximity to the shore, while on
the Pacific coast, Commodore Stockton, in the succeeding August,
ordered the capture of "all vessels under the Mexican flag."
The treaties with Prussia of 1785, 1799, and 1828, and of 1848 with
Mexico, in exempting fishermen, "unarmed and inhabiting unfortified
towns, villages, or places," did not exempt fishing vessels from seizure
as prize, and these captures evidence the convictions entertained and
acted on in the late war with Spain.
In is needless to review the speculations and repetitions of the writers
on international law. Ortolan, De Boeck, and others admit that the

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